Interpretation of law has turned out be one of the biggest hurdles with the Insolvency and Bankruptcy Code, the much touted reform for banks to recoup the monies lent to failed businesses. And the case of Essar Steel, the first one to be admitted in the National Company Law Tribunal (NCLT) under the Insolvency and Bankruptcy Code, has been tested the limits of the law and even led to an amendment. Yet, more than year after it was admitted into the NCLT, confusion persists.
Last week, after months of legal tussle, it appeared the dust had finally settled. The National Company Law Appellate Tribunal (NCLAT) ruled that the second round bid by Numetal Ltd, a consortium led by Russia’s second largest bank VTB Capital, was valid as Rewant Ruia, son of Essar Group promoter Ravi Ruia was no longer a part of the consortium. In the same judgement it also decided to ‘give one opportunity’ to ArcelorMittal to clear the dues of Uttam Galva and KSS Petron, amounting to Rs 7,000 crore by September 11. The non-performing accounts of the two companies had rendered ArcelorMittal’s bid ineligible as it held stake in Uttam Galva, through its Dutch subsidiary, and its promoter held a stake in KazStroyService (KSS), the company which completely owns KSS Petron. The NCLAT said in its judgement, “If such an amount is deposited in the accounts of both Non Performing Accounts of ‘Uttam Galva’ and ‘KSS Petron’ within time aforementioned and is informed, the ‘Committee of Creditors’ will consider the ‘Resolution Plan’ submitted by ‘AM India Ltd’ [ArcelorMittal India Ltd].”
It appears to be clear. Pay up by September 11 and become eligible but ArcelorMittal appear to have interpreted it slightly differently. On Monday, when the Committee of Creditors opened the bids by Numetal Ltd, ArcelorMittal India Ltd and Vedanta Resources Plc, it was sent a letter by the Luxembourg-headquartered steelmaker that it had revised its bid and also committed to clear the dues of Uttam Galva and KSS Petron.
Sources in the know of the development said that the revised bid by ArcelorMittal, which includes the commitment to clear the dues of Uttam Galva and KSS Petron, is around Rs 42,000 crore, more than Numetal’s Rs 37,000 crore bid and Vedanta Resources’ Rs 34,000 crore bid.
Later in the day, ArcelorMittal confirmed the revision in the bid but did not disclose the details. “ArcelorMittal confirms that it has today submitted a revised proposal for Essar Steel India Ltd’s (ESIL) Committee of Creditors for the acquisition of ESIL. The financial terms of the proposal are confidential but represent a material increase to the previous offers made by the company. The revised offer, which includes a commitment to pay the entire amount due to the financial creditors of Uttam Galva and KSS Petron, therefore represents unprecedented value to all concerned creditors. Through the revised offer ArcelorMittal demonstrates its serious commitment to India, creditor banks and all ESIL’s stakeholders,” the company’s spokesperson said in a statement.
Whether ArcelorMittal’s revised bid and ‘commitment’ to clear the dues of Uttam Galva and KSS Petron passes the muster remains unclear. “They [ArcelorMittal] had made a similar commitment before the case moved to the NCLAT. But the NCLAT judgement is quite clear that payment needs to be made and confirmed. Whether this latest offer satisfies the judgement is open to interpretation,” a Mumbai-based lawyer looking into Insolvency and Bankruptcy Code issues said on condition of anonymity.
And while ArcelorMittal’s maybe walking away on Monday with the tag of the highest bid for Essar Steel. The story is far from over. The NCLAT judgement on Friday allowed for the Committee of Creditors to renegotiate with the bidders. Vedanta Resources Plc’s Executive Chairman Anil Agarwal had ruled out the option of revising their bid for Essar Steel while speaking to television channels on Friday. Numetal did not comment whether the company will revise its bid on Monday.
Over the next few days, the Committee of Creditors will decide the winning bid. By all indications from sources connected to the developments, the decision is likely to be challenged and the matter could ultimately be settled in the Supreme Court.